Cole

This action was brought to recover damages for the alleged diversion of water from a canyon onto the plaintiff’s land, through an artificial channel constructed by the defendant’s testator. The cause was tried by a jury, which rendered a verdict in favor of the defendant. A motion of the plaintiff far a new trial upon the ground, among others, that the verdict was contrary to the evidence, was granted by the court, and from this order the defendant has appealed.

The plaintiff gave notice of his intention to move for a new trial March 17, 1892, and on the twenty-first day of March obtained from the court ten days time, in addition to the time allowed by law, in which to prepare and serve his proposed statement of the case. On the 29th of March he went to the court for the purpose of procuring additional time in which to prepare the statement, and the application which he made was granted, but the order that was entered by the clerk was for a stay of execution, instead of giving him further time to prepare his statement, and he did not discover this fact until about April 4th, on which day hei gave notice that he would make an application to the court for further time; and on the…